Research On The Application Of The Compensation Clause For Losses Of Ecological And Environmental Services

Green signifies the Chinese feature,practical feature,and contempary feature of the newly adopted Civil Code of the People's Republic of China.The clause on the compensation of losses of ecological and environmental services is a newly added clause in the Civil Code and is the shiniest emerald among all green clauses.This clause is the result of theoretical reseach and practical experiments of pilot projects in recent years,embodies the determination and confidence of China in developing an ecological civilization,and a new choice for the development of global institutions for environmental protection.A research into the application of this clause is necessary for the implementation of the green Civil Code and the promotion of institutions for ecological civilization.The institutional background of the clause on the compensation of losses of ecological and environmental services is the theoretical research and practical experiments in environmental public interest litigation,compensation for ecological and environmental damages,and related institutions.Article 9 of the Rules of the Supreme People's Court on the Hearing of Disputes on the Compensation for Damages Caused by Oil Pollution of Vessels,Article 3 of the Rules on Claiming Losses by the State for Marine Ecological Damages,and Article 7 of the Rules of the Supreme People's Court on the Hearing of Disputes on the Compensation of Damages to Marine Natural Resources and Ecological Environment took losses of ecological and environmental services into the compensation of damages arising from oil pollution caused by vessels,state losses of marine ecological damages,and damages to marine natural resources and ecological environment.Articlces 15 and 21 of the Interpretations of the Supreme People's Court on the Application of Law in Hearing Environmental Civil Public Interest Litigation Cases took losses of ecological and environmental services into the scope of appraisal and compensation of losses.The Pilot Plan for the Reform of Rules on the Compensation of Ecological and Environmental Damages and Articles 12 and 15 the Rules of the Supreme People's Court on the Hearing of Cases on the Compensation of Ecological and Environmental Damages(for trial implementation)took losses of ecological and environmental services into the scope of compensation of ecological and environmental damages.The Interpretations of the Supreme People's Court and the Supreme People's Procuratorate on the Application of Law in Environmental Pollution Criminal Cases took the losses of ecological and environmental services as one of the bases in terms of criminal conduct for the Crime of Polluting the Environment provided in Article 338 of the Criminal Code.These rules are useful for protecting ecological and environmental services but need to be integrated in the Civil Code.Article 1235 is one of the results of integrating previous practical exploration and theoretical research.The normative positioning of the clause on the compensation of losses of environmental and ecological services has the feature of integrating the duality.The normative positioning is embodied in the positioning of values,the connection with other rules,the structure,and procedures.The duality of values is that the ends are to achieve public interests while the means are of private law.This clause embodies the requirements on environmental protection provided in the Preamble(the tasks of the State to develop into a socialist strong country under the new notions of development),Article 9(natural resources),Article 10(land),and Article 26(the State's responsibilities to protect the environment)of the Constitution of the People's Republic of China.It is one of the key provisions in the Book of Tort Liabilities for the implementation of the Green Principle enshrined in Article 9 of the Civil Code.This clause protects the interests of the persons as well as the environment.The target of protection is of public interests.The public interest of the target does not necessarily provide the basis of claims for a civil lawsuit.Other conditions are necessary for a public interest to constitue the basis for a claim of a civil lawsuit.After legal interpretation,this dissertation reveals that ecological and environmental services are public interests which can be directly used as the basis for claiming tortious liabilities.The purpose of this clause is to accord pubic interests with the capacity of being directly used as the basis for claiming civil remedies and make private law remedies available to the protection of public interests.Because it can be used directly as basis for claiming civil remedies,the claiming of losses of environmental and ecological services does not rest on the claiming of costs of restoring the ecological environment.Article 1234 and Article 1235 are relatively independent from each other.After an agency designated by the State or a statutorily provided organization claimed and recovered the costs of restoring the ecological environment,another agency designated by the State or statutorily provided organization may still claim compensation for losses of ecological and environmental services.Similarly,after an agency designated by the State functioned as an administrative agency and recovered from the polluter the costs of restoring the ecological environment through administrative compulsion and other administrative law enforcement activities,agencies designated by the State or statutorily provided organizations may still claim compensation for losses of ecological and environmental services through civil procedures.The duality of its connection with other rules is that it is horizontally connected with other clauses for the protection of ecological and environmental public interests,other clauses on ecological and environmental tortious liabilities,and other rules of civil law;and vertically connected with administrative rules on ecological and environmental protection,the criminal law rules,and other public law rules.The duality of the structure is that it is a private law rules with public law rules being embedded in it.The duality of procedure is mainly embodied in the duality of parties who have the standing to initiate a civil litigation to claim compensation for losses of ecological and environmental services.The constitution of the compensation liability for losses of ecological and environmental services has the feature of integrating public law and private law.The public law feature is that the liability of losses of ecological and environmental services is preconditioned on “a violation of state rules”.The term “State rules” refers to administrative rules on ecological and environmental protection,particularly rules applicable to the stage before the construction of a project and rules applicable to the operation of construction projects.The theory of “independent factor” is strongly persuasive for interpreting the violation of State rules as a constituent of tortious liability while the theory of “absorption by fault” also holds water.The term “State rules” is not a term expressly used for the hierarch of rules in the Legislation Law,and its meaning is still subject to deliberation.After comparing other clauses of the Civil Code containing “State rules” or “relevant State rules”,rules on ecological and environmental damages containing “State rules” which were adopted before the Civil Code,criminal law provisions containing “State rules”,this dissertation takes the opinion that the interpretation of “State rules” for the application of the clause on the compensation of losses of ecological and environmental services should be made in the following ways: this term should be broadly interpreted as to the hierarchy of rules and the scope of application but should be narrowly interpreted as to the binding force and normative goals.As a constituent of injury,the losses of ecological and environmental services should be serious to make it compensable.The nature of the losses of ecological and environmental services is non-monetary losses,direct losses,negative losses,losses of social public interests,and pure ecological and environmental losses.The burden of proof for causation should not be reversed.Besides defenses generally applicable to all type of torts such as force majeure,defenses available to defendants have their features in losses of ecological and environmental services.Third party causes should not be used as a defense for the tort liability to compensate losses of ecological and environmental services.Promises made by local governments when attracting investments and the change of state rules may affect the constitution of the liability to compensate losses of ecological and environmental services.The imposition of the liability to compensate the losses of ecological and environmental services has the feature of discretionary compensation.The discretion in the compensation of injury is established in the civil legislation,judgments and verdicts of the Supreme People's Court,and legal theories.The term “determination with discretion” frequently appears in judicial interpretations and judgments.In practice,the discretionary compensation may be initiated by the application of litigants or by the court.In practice,there are at least five scenarios of exercising discretion by the court:to find injury with appraisal report,to interpret the law in the court,to determine the amount of compensation by analogy,to determine average value with statistics,and to determine the amount by directly exercising discretion.The appraisal report has important impacts on judicial discretion.The management of the qualification of assessment and appraisal and the technologies of appraisal are important factors affecting the judicial discretion.For the interim losses of ecological and environmental services,appraisal reports may separately determine the amount,determine the amount by analogy,or determine the amount by virtual computation.In practice,the relationship between judicial discretion and appraisal reports have three scenarios:complete acceptance,partial acceptance,and discretion.There is a need to improve rules,specify conditions,and prevent capricious discretion to harness the judicial discretion.The relationship between the compensation clause for the losses of ecological and environmental services and other related institutions is the concerted coordination between private law and public law.Consultation for the compensation of ecological and environmental damages is a legal institution currently being developed and improved.It has the features of being administrative,deliberative,and subject to acceptance of the parties.The conciliation and the clause on the compensation of losses of ecological and environmental service stand side by side with each other but the conciliation should be applied with priority.Surrogate performance is supplementary to the clause on the compensation of losses of ecological and environmental services.Administrative fines are mainly punitive but their compensatory features have been recognized and accepted.As to the amount,use,costs of the polluter,and goals of the party initiating the compensation claims,administrative fines are potentially substitutional to the compensation of losses of ecological and environmental services.Both the civil compensation for losses of ecological and environmental services and criminal liabilities precondition on the violation of State rules on ecological and environmental protection.The concerted coordinated between the civil compensation for losses of ecological and environmental services and criminal liabilities mainly include the discretion of administrative agencies on whether to refer the case for criminal investigation and prosecution,the discretion of the prosecutors on whether to drop the case,and the discretion of the court on whether to exempt criminal punishment or the use of probation.The Supreme People's Court should issue judicial interpreations and guiding cases at appropriate time to uniform the application of the clause on the losses of ecological and environmental services.The Supreme People's Court should check and streamline the current judicial interpretations and make new judicial interpretations and issue guiding cases of high quality in the background of the Civil Code.When selecting cases and boiling down key points,the Supreme People's Court shoud stress the guidance and should detail and clarify the constituents of tort liability for losses of ecological and environmental services.The purpose is to standardize the factors,methods,and standards of adjudication and discretion.The Supreme People's Court should signify the guidance of guiding cases with a view of capacity building for lower courts.